Judge Holly J. Fujie, Case Number: 21STCV44739, Date: 2024-11-27 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendants Chedraui USA, Inc. f/k/a Bodega Latina Corporation (“Bodega”) and Mario Morales (“Morales”) (collectively, “Defendants”)

This action arises out of alleged sexual harassment during Plaintiff’s employment with Defendant. Plaintiff’s complaint alleges: (1) hostile work environment harassment; and (2) failure to prevent and/or remedy harassment.

On May 16, 2024, Defendants filed the instant Motion for Summary Judgment or, Alternatively, Summary Adjudication of Issues (the “Motion”). Plaintiff filed an opposition to the Motion on November 13, 2024, and Defendants filed a reply on November 22, 2024.

In their reply, Defendants have filed: (1) Objections to Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts; and (2) Objections and Responses to Plaintiff’s Separate Statement of Additional Undisputed Material Facts.

A review of these objections reveals that with the exceptions of Objection Nos. 9 and 10 contained in the Objections to Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts, the remaining objections are not properly objections to evidence, but are objections to the facts listed in the separate statements submitted by Plaintiff. As made clear by California Rules of Court Rule 3.1354, which governs objections on summary judgment, objections must be directed to a specific piece of evidence – the document must be named and identified by exhibit, page, and line number. Objections may not be directed to the separate statement itself because that is merely counsel’s characterization of the evidence. To the extent that a ruling on these objections is necessary, they are OVERRULED.

Objection Nos. 9 and 10 are not material to the disposition of this Motion but are preserved. (Code Civ. Proc. § 437c(q).)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

To state a claim of harassment under FEHA, Plaintiff must show “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal.App.5th 549, 563.)

Importantly, the Court notes that Defendants do not dispute but, in fact, acknowledge that there is substantial evidence that Plaintiff experienced at least three isolated incidents of purported sexual harassment, citing Plaintiff’s deposition testimony. Defendant also acknowledges a fourth alleged incident consisting of Morales punching Plaintiff but argues that the conduct is not sexual in nature and, therefore, does not constitute sexual harassment as a matter of law. (Motion, p. 10; Reply, p. 2.) In essence, Defendants argue that Plaintiff’s first cause of action for a hostile work environment based on sexual harassment fails because the conduct complained of – e.g., Morales’ grabbing Plaintiff’s leg and touching Plaintiff’s behind – were not sufficiently severe or pervasive.

Defendants’ argument is unavailing. The Legislature has expressly eliminated that argument for summary judgment purposes, in an amendment to FEHA. Government Code § 12923, effective as of January 1, 2019, provides in relevant part as follows:

“The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.

(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment…

(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.”

These provisions remove the court’s ability to say, as a matter of law, that a single, isolated incident is insufficient to create liability for harassment in any context. Even more so here, where there are at least three incidents of alleged sexual harassment that Defendants do not dispute.

In Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 855, the Court of Appeal held:

The trial court relied heavily on case law decided before section 12923 was adopted. This failed to take into account several key principles, including the definition of a hostile work environment, the clarification that ‘[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct ... created an intimidating, hostile, or offensive work environment,’ and the instruction that ‘[h]arassment cases are rarely appropriate for disposition on summary judgment.’ (§ 12923, subds. (a), (b), (e).) [¶] Instead, the trial court relied on older cases that did not take these principles into account, such as Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 68 Cal.Rptr.3d 568, where the court concluded that three incidents of harassment over five weeks was not severe and pervasive, and Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609, 262 Cal.Rptr. 842, which stated that ‘plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ These cases are no longer good law when it comes to determining what conduct creates a hostile work environment in the context of a motion for summary judgment or adjudication. (§ 12923; CACI No. 2524.)

This cause of action can only be prosecuted if there is a viable claim for discrimination, harassment or retaliation. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314-15; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284-285.)

Defendants argue that Plaintiff’s claim for failure to prevent and/or remedy work environment harassment is derivative of her other meritless claim, and should therefore fail. (Motion, p. 14.) Since Plaintiff’s first claim for work environment harassment remains viable, that hurdle has been passed. For the reasons given above, summary adjudication as to Plaintiff’s first cause of action is denied. Therefore, the second cause of action which relies upon the first cause of action similarly survives this Motion.

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

Punitive damages are available in FEHA cases should the jury find that the defense engaged in deliberate discrimination, especially if they find a pretext (which is, by definition, deceptive behavior meant to mask ill intent). (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911-912.) Plaintiff, however, still needs to prove that the relevant acts were performed or approved by a managing agent.

“[T]he Legislature intended the term “managing agent” to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. The scope of a corporate employee's discretion and authority under our test is therefore a question of fact for decision on a case-by-case basis.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.)

Defense argues that no managing agent was involved in Plaintiff’s case. Specifically, Defendants submit that Maria Guerrero (“Guerrero”), to whom Plaintiff reported her complaints regarding Morales, managed day-to-day operations at the store, but that there is no evidence that she had authority to resolve Plaintiff’s complaint unilaterally. Defendants also argue that Guerrero had no authority to make company policy for Bodega, on either a formal or an ad hoc basis, and Plaintiff has not presented any evidence that she did. (Reply, p. 9.) As this is a motion for summary judgment and, as such, Defendants bear the initial burden of providing significant or concrete evidence regarding the actual scope of an alleged managing agent’s discretion and authority. Defendants have failed to meet their initial burden on that argument. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 854.) Moreover, as noted above, this is a question of fact to be decided on a case-by-case basis. (White v. Ultramar, Inc., supra.)

In the alternative, Defendants suggest that Plaintiff cannot show that anyone acted with malice, oppression or fraud. Similarly, that is a question of fact for the jury to determine. Harassment may be found by a jury to be despicable and to constitute willful or conscious disregard of Plaintiff’s rights.

Defendants have not met their burden of showing that they are entitled to either summary judgment or adjudication in their favor. Accordingly, the Motion is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court